Exhibit 10.1
TORCH OFFSHORE, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is effective as of October 28, 2004
(the "Effective Date"), and is entered into between Torch Offshore, Inc., a
Delaware corporation (the "Corporation"), and Xxxxxxx Xxxxxxx, a person of the
full age of majority (the "Employee").
1. Employment and Duties.
(a) The Corporation agrees to employ the Employee as Senior Vice President
- Operations, as of the effective date of this Agreement for the period set
forth in paragraph 1(c) below, unless employment is terminated sooner as
provided herein.
(b) The Employee accepts employment and agrees to devote his full time and
attention to the performance of his duties as determined, from time to time, by
the Chief Executive Officer or the Board of Directors of the Corporation.
(c) The Employee shall commence his duties as of October 28, 2004, and
shall continue to serve in the employ of the Corporation until October 28, 2005,
(the "Initial Term"), except as provided herein. Upon the expiration of the
Initial Term, this Agreement shall be automatically renewed for two (2)
successive one-year terms unless terminated at least sixty (60) days prior to
the end of the then current year term (each successive year is the "Renewal
Term).
(d) The Corporation will sponsor and process at its cost the extension(s)
of the Employee's H1B visa that is required for the Employee's employment.
2. Compensation. The Corporation shall pay to the Employee the following
amounts, subject to the terms and conditions set forth in this Agreement:
(a) An annual salary of $210,000.00, and such amount shall be prorated and
paid in accordance with the Corporation's customary payroll practices.
(b) Employee shall be eligible to participate in the Torch "Incentive
Bonus Plan" as determined by the Compensation Committee of the Corporation
commencing for the financial results of the fiscal year starting January 1, 2004
and ending December 31, 2004 and continuing as determined by the Compensation
Committee of the Board of Directors of the Corporation for future fiscal year
time periods.
(c) If the Corporation terminates the employment of the Employee for any
reason other than Cause (as defined herein), then the Corporation shall pay to
the Employee severance payments of six month's of salary at his then current
rate, to be paid in accordance with the Company's standard payroll practices.
Any amount(s) payable under this Agreement shall be subject to the
withholding of such income and employment taxes as may be required by law to be
withheld.
3. Payment or Reimbursement of Expenses. Subject to compliance by the
Employee with such policies regarding expenses and expense reimbursements as may
be adopted, from time to time, by the Corporation, the Employee shall be paid or
reimbursed for reasonable expenses actually incurred in
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connection with the performance of his duties hereunder and in the furtherance
of the business and affairs of the Corporation. Any such reimbursement shall be
made within a reasonable period after presentation by the Employee of an
itemized account of such expenses, accompanied by appropriate receipts
satisfactory to the Corporation. In no event shall any expense be paid or
reimbursed, unless properly accounted for to the extent necessary to
substantiate the Corporation's Federal income tax deduction under the applicable
provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and
the regulations promulgated thereunder or any similar state or federal law or
regulation.
Relocation Expenses. The Employee shall be reimbursed for expenses incurred in
connection with the Employee's relocation to Houston, Texas. Such expenses
should be submitted to the Chief Financial Officer on an expense account form.
The Employee shall also be reimbursed for a maximum of 30 days of temporary
accommodation in Houston, Texas, until a permanent residence can be established.
However, in no event will the amount of reimbursement for relocation expenses
and temporary accommodations exceed $10,000 in aggregate.
4. Additional Benefits.
(a) The Employee shall be eligible to participate in such qualified
employee benefit plans and other welfare or fringe benefits as may be maintained
by the Corporation for the benefit of employees, from time to time. Such
participation shall be determined in accordance with the terms and conditions of
each such separate plan or program.
(b) The Employee expressly acknowledges and agrees that, notwithstanding
any provision of this Agreement to the contrary, the Employee shall not be
eligible to receive from the Corporation any form of severance pay or other form
of termination benefit, except as expressly provided herein (other than coverage
under COBRA or other form of legally mandated benefit available after the
termination of employment).
(c) The Employee shall be entitled to 15 business days of paid vacation
each year and one return trip to permanent residence in Indonesia, in coach
class for himself and his wife, to be accrued and taken in accordance with the
Corporation's standard policies and practices.
5. Termination.
(a) This Agreement and the Corporation's obligations hereunder shall
terminate as of the conclusion of the Initial Term, unless terminated earlier
pursuant to this paragraph 1 hereof or extended for successive one-year terms as
provided in paragraph 1(c) hereof.
(b) Either party may terminate this Agreement by providing the other party
with thirty (30) days written notice.
(c) If the Employee dies or becomes totally disabled (as determined by the
Board of Directors or the Chief Executive Officer of the Corporation), this
Agreement and the Employee's rights hereunder shall automatically terminate as
of the date of such death or disability.
(d) The Corporation may terminate this Agreement and the Employee's rights
hereunder at any time for Cause, which shall mean (i) any willful breach of duty
by the Employee in the course of the performance of his duties hereunder or for
the habitual neglect by the Employee of such duties, each as determined by the
Board of Directors of the Corporation, which continues after written notice to
Employee; (ii) the conviction of any felony or plea of "no contest" to any
charge that he has committed any felony; (iii) arrest or formal charge with
having committed any felony which involves embezzlement, theft, bribery, or
other business-related crimes or any aggravated crime against a person; (iv)
arrest or
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otherwise formal charge with a felony or any crime involving moral turpitude or
any other criminal activity or unethical conduct which, in the opinion of the
Board of Directors of the Corporation, would materially impair the Employee's
ability to perform his duties hereunder or would impair the business reputation
of the Corporation; (v) failure or refusal to comply with the policies,
standards and regulations of the Corporation after written notice to Employee;
or (vi) breach of the provisions of paragraph 7 hereof.
7. Covenant Not to Compete. During the term of the Employee's employment
with the Corporation or for a period of six (6) months following any termination
of the Employee's employment with the Corporation, the Employee agrees that,
with respect to the parishes within the State of Louisiana, and the counties
within the States of Texas, Alabama, Florida, and Mississippi set forth on
Schedule A attached hereto, including the territorial waters of the United
States located offshore of such areas, (c) France, (d) Italy, (e) Athens, (f)
United Arab Emirates (h) West Africa including Nigeria and (g) Norway each of
which the Employee stipulates and agrees that the Corporation carries on or
intends to carry on a like business, the Employee shall not, directly or
indirectly, for his own benefit or to the detriment of the Corporation or its
affiliates:
(a) Own, manage, operate, control, or participate in the ownership,
management, operation, or control of a business (however structured) that
carries on or engages in any manner (excluding stock in a publicly held
corporation), in the Pipelay and Subsea Construction Business. For this purpose,
the term "Pipelay and Subsea Construction Business" shall refer to the
installation, laying, and/or burying of transmission lines, trunk lines, and
flowlines, laying of all rigid, flexible, reeled, or coiled tubing and
installing, laying, and/or burying of control, power umbilicals and subsea
communication or power cables, and pipeline tie-ins, pipeline burial, riser
installation and survey, inspection, maintenance, and repair services in
connection with oil and gas pipelines;
(b) Perform any services similar to the primary services he performed
while employed by the Corporation or any of its subsidiaries or affiliates for
any person, partnership, corporation, association, group, or other entity
engaged in the Pipelay and Subsea Construction Business (as defined above),
whether as an employee, independent contractor, or otherwise; or
(c) Solicit customers or employees of the Corporation or any of its
subsidiaries or affiliates for any purpose or in any manner detrimental to the
Corporation or its business or operations.
The parties hereto agree that each of the foregoing
prohibitions is intended to constitute a separate restriction. Accordingly,
should any such prohibition be declared invalid or unenforceable, such
prohibition shall be deemed severable from and shall not affect the remainder
thereof. The parties further agree that the foregoing restrictions are
reasonable in both time and scope.
Because of the difficulty of measuring economic loss to the
Corporation as a result of a breach of any of the foregoing prohibitions, and
because of the immediate and irreplaceable damage that could be caused to the
Corporation for which it would have no other adequate remedy, the Employee
agrees that the foregoing prohibitions may be enforced by the Corporation, in
the event of a breach by him, by injunctions, restraining orders, and orders of
specific performance issued by a court of competent jurisdiction. The Employee
further agrees to waive any requirement for the Corporation's securing or
posting of any bond in connection with such remedies.
8. Confidential Information.
(a) The Employee agrees not to disclose, either while employed by the
Corporation or any of its subsidiaries or affiliates or at any time thereafter,
to any person not employed by the Corporation or not engaged by the Corporation
to render services to the Corporation, any confidential information of the
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Corporation or its subsidiaries or affiliates learned by the Employee during the
course of his employment by the Corporation. This paragraph 8 shall not preclude
the Employee from the use or disclosure of information known generally to the
public or of information not considered confidential by persons engaged in the
business conducted by the Corporation for from disclosure required by law or
court order. The Employee further agrees that, upon the expiration or
termination of this Agreement for any reason, he will not take with him, without
the prior written consent of the Corporation, any document, magnetic or other
storage media, or any other books, records, files, or confidential or
proprietary information of the Corporation or any of its subsidiaries or
affiliates.
(b) All written materials, records, and documents made by the Employee or
in the possession of the Employee during or after the term of this Agreement
concerning the business or affairs of the Corporation or any of its subsidiaries
or affiliates, or other items or property held by or for the Employee, but owned
or used by the Corporation or such subsidiary or affiliate, as the case may be,
and, upon the expiration or termination of the term of this Agreement or upon
the request of the Corporation or such subsidiary or affiliate, the Employee
shall promptly deliver all of such materials, records, documents, or other items
or property that are then in his possession.
9. Notices. All notices, requests, demands, and other communications
provided for by this Agreement shall be in writing and shall be deemed to have
been duly given when delivered in person or mailed by United States certified
mail, return receipt required, postage prepaid, addressed as follows:
If to the Employee: If to the Corporation:
Xxxxxxx Xxxxxxx Torch Offshore, Inc.
____________________ 000 Xxxxxxx Xxxxxx, Xxxxx 000
____________________ Xxxxxx, Xxxxxxxxx 00000
____________________ Attention: Xxxx Xxxxxxxxxx, CEO
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
10. Governing Law. The provisions of this Agreement shall be construed in
accordance with the substantive local law of the State of Louisiana, without
consideration of the conflicts of law provisions thereof.
11. Successors. This Agreement shall be assignable by the Corporation,
with the prior written consent of the Employee. The Employee's obligation to
provide services hereunder, being personal to the Employee, may not be assigned
by the Employee.
12. Remedies. Each party acknowledges that the other party will have no
adequate remedy at law if the first party violates certain of the terms of this
Agreement, and that the other party shall have the right, to the extent
permitted by applicable law, in addition to any other rights or remedies it may
have, to obtain from any court of competent jurisdiction, injunctive relief to
restrain any breach or threatened breach hereof or otherwise to specifically
enforce the provisions hereof.
13. Waiver. No waiver of any obligation, right or remedy under this
Agreement shall be effective, unless such waiver is made in writing, specifying
the terms of this Agreement subject to waiver and executed by the party to be
charged with such waiver. A waiver by either party of any of his or its rights
or remedies hereunder on any occasion shall not be a bar to the exercise of the
same right or remedy on any subsequent occasion or of the exercise of any other
right or remedy at any time.
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14. Integration and Amendments. This Agreement constitutes the entire
agreement and understanding between the parties with respect to the subject
matter hereof and supersedes any prior agreement or understanding, whether
written or oral, relating to such subject matter. No modification or amendment
to this Agreement shall be effective or binding unless in writing, specifying
such modification or amendment, executed by both of the parties hereto.
15. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect the construction or interpretation of this
Agreement.
16. Severability. Should any section, provision, or portion of this
Agreement be declared invalid or unenforceable in any jurisdiction, then such
section, provision, or portion shall be deemed to be (a) severable from this
Agreement as to such jurisdiction (but not elsewhere) and shall not affect the
remainder hereof and (b) amended to the extent, and only to the extent,
necessary to permit such section, provision, or portion, as the case may be, to
be valid and enforceable in such jurisdiction (but not elsewhere).
17. Survival of Certain Provisions. The rights and obligations of the
Employee under paragraph 7 hereof shall survive the expiration or termination of
this Agreement.
THIS AGREEMENT was executed in multiple counterparts, each of which shall
be deemed an original, as of the dates set forth below, but to be effective as
of the Effective Date.
EMPLOYEE: TORCH OFFSHORE, INC.
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxx Xxxxxxxxxx
------------------- -----------------------------
Xxxxxxx Xxxxxxx
Title: Chief Administrative Officer
Date: October 28, 2004 Date: October 28, 2004
Schedule A - Counties and Parishes in which Competition is Prohibited
I. Texas
Xxxxxxxxx Xxxxxxxx Xxxxxx
Galveston Brazoria
Xxxxxxx Aransas
Nueces Xxxxxxx
XX. Louisiana
Cameron Vermilion Lafayette
Iberia St. Xxxx Orleans
Terrebonne Lafourche
Jefferson Plaquemines
III. Mississippi
Xxxxxxx Xxxxxxxx
Xxxxxxx
XX. Alabama
Mobile
V. Florida
Escambia Santa Xxxx
Pinnellas Hillsborough
Manatee Brevard
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